Court finds defendant’s consent was not voluntary, faulting in part the government’s failure to develop on cross-examination things that supported voluntariness. Since the government carried the burden of consent, it failed. United States v. Brown, 2009 U.S. Dist. LEXIS 121514 (D. N.J. December 30, 2009)*:

After balancing the testimony of Ms. Ford and Detective Santiago and consideration of the submissions and evidence, this Court finds that the totality of the circumstances supports a finding that Ms. Ford’s consent was not voluntary. The Court finds the following facts significant: the time of the incident; the number and types of officers involved; the fact that the officers had a specific target prior to coming to the apartment yet had no plan for a method of further investigation that did not involve obtaining access to the apartment; the fact that the officers reported that the gun was ultimately found in plain view even though they allegedly conducted a visual sweep of the kitchen earlier and did not find the gun; the threat of DYFS involvement; and the way the form was given to Ms. Ford, completely filled out by the officers and folded over showing only the signature line. The Court finds that the Government has not met its burden that Ms. Ford knew she was consenting to a search of her apartment, as opposed to just signing a form the officers were insisting she sign so they would go away. Additionally, even if she knew the form was a consent to search form, the Court finds that, under the circumstances, the Government has not met its burden that Ms. Ford’s acquiescence was voluntary as opposed to given under the threat of her children being taken away by DYFS. Therefore, the gun seized as a result of the search is suppressed.

Full body scanners

Eroding our Fourth Amendment on Character Counts.

What’s being said on the web about “full body scanner images” from Surchur. Somewhat informative about the technology.

Potentially the oxymoron headline of the year: Newark Liberty Airport to receive full-body scanners. “Liberty” and “full-body scanners” in the same headline ….

Update: CNN.com: Body scanners not ‘magic technology’ against terror.

Fourth-Party Data Brokers

Using Fourth-Party Data Brokers To Bypass the Fourth Amendment on TechBlogger.org, referring to Buying You: The Government’s Use of Fourth-Parties to Launder Data about ‘The People’ by Joshua L. Simmons on SSRN. Abstract:

Your information is for sale, and the government is buying it at alarming rates. The CIA, FBI, Justice Department, Defense Department, and other government agencies are at this very moment turning to a group of companies to provide them information that these companies can gather without the restrictions that bind government intelligence agencies. The information is gathered from sources that few would believe the government could gain unfettered access to, but which, under current Fourth Amendment doctrine and statutory protections, are completely accessible.

Fourth-parties, such as ChoicePoint or LexisNexis, are private companies that aggregate data for the government, and they comprise the private security-industrial complex that arose after the attacks of September 11, 2001. They are in the business of acquiring information, not from the information’s originator (the first-party), nor from the information’s anticipated recipient (the second-party), but from the unavoidable digital intermediaries that transmit and store the information (third-parties). These fourth-party companies act with impunity as they gather information that the government wants but would be unable to collect on its own due to Fourth Amendment or statutory prohibitions. This paper argues that when fourth-parties disclose to law enforcement information generated as a result of searches that would be violations had the government conducted the searches itself, those fourth-parties’ actions should be considered searches by agents of the government, and the data should retain privacy protections.

On September 11, 2001, the 19 hijackers’ financial information was provided to the government by Acxiom in Arkansas, a private consumer-banking database. Since they were dead, they no longer had any privacy interest in the records, such that it was, from subpoena or anything else. When Acxiom’s database was hacked for marginal information, the feds prosecuted vigorously. [It is also reputed that DHS police protect the mainframe, if there is one. I never confirmed that.]

FISA’s less than probable cause standard is constitutional under U.S. v. U.S. District Court (Keith). United States v. Shnewer, 2008 U.S. Dist. LEXIS 112001 (D. N.J. August 14, 2008, decided, December 29, 2009, filed):

First, Defendants argue FISA is unconstitutional because it lacks a requirement that the government show that a crime has been or is being committed. The probable cause requirement under FISA is different than the probable cause to seek a Title III wiretap. As noted by Judge Easterbrook in United States v. Ning Wen, 477 F.3d 896 (7th Cir. 2007), however, “the probable cause of which the fourth amendment speaks is not necessarily probable cause to believe that any law is being violated.” Id. at 898. The court in that case analogized the probable cause required by FISA to the probable cause requirements for administrative search warrants, which may issue on probable cause to believe that the government has adopted a reasonable system of regulations and inspections and is not targeting individuals for improper reasons. The Supreme Court in Keith recognized that Congress is constitutionally permitted to set different standards for probable cause in the context of foreign intelligence surveillance than in ordinary criminal surveillance. This different probable cause requirement does not render FISA in violation of the Fourth Amendment.

. . .

In addition, Defendants argue the government may retain and use FISA-derived information without providing a defendant with a meaningful opportunity to challenge a FISA order. This is a challenge to the ex parte, in camera review contemplated by FISA. Defendants seek disclosure of the currently classified applications so that they may more effectively challenge the FISA orders. As noted above, while other courts have sympathized with the difficulty of Defendants’ position and the uphill battle they face in challenging orders of which they cannot know the content, such a system is permissible given the requirements of foreign intelligence gathering. See, e.g., Mubayyid, 521 F. Supp. 2d at 131.

Defendants argue further that without a criminal prosecution, no notice is ever given to a target that FISA-approved surveillance has occurred, and the notice provisions in general are impermissibly broad. The government argues, and the Court agrees, that Defendants do not have standing to raise this issue because a criminal prosecution was initiated in this case and the Defendants were given notice.

A few blogs go into their “best of the year” list. I’ve never provided one. With over 830 other posts this year, I must have read 4,000 cases in 2009. Instead, I’ll rely on the observations of others:

On the Washington Independent website: Best of 2009: Al Franken Reads 4th Amendment to Justice Department Official, by Daphne Eviatar (reprinted from September 23, 2009).

Part of a sex offender statute effective January 1, 2010 that provides for warrantless monitoring of internet usage of offenders who have done their time and are off parole likely violates ex Post Facto Clause and Fourth Amendment, so preliminary injunction granted as to that. The state conceded the Fourth Amendment violation. Doe v. State of Nebraska, 2009 U.S. Dist. LEXIS 121104 (D. Neb. December 30, 2009):

Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to … live … as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”

To be clear, like the Attorney General of the United States, I do not equate the SORNA requirement that a registrant report in person (and provide a limited amount of information) as the equivalent of “supervision” within the meaning of Smith v. Doe. See National Guidelines, at 2008 WL 2594934, at *38046 (concluding that SORNA was consistent with Smith v. Doe). See also Pataki, 120 F.3d at 1284-85 (registration provisions of New York’s sex offender registration law imposing duty to register in person every 90 days for minimum of ten years, did not inflict “punishment” within meaning of Ex Post Facto Clause). On the other hand, I do equate an in-person reporting requirement, when coupled with invasive consent to search, electronic monitoring, and Internet prohibition provisos, to be “supervision” within the meaning of Smith v. Doe.

So, here’s the point: It is probable that Plaintiffs will succeed on the merits of their Ex Post Facto Clause claim regarding these two amendments. In evaluating the validity of this conclusion, please observe that Nebraska was unable to give me any comparable legislation that had passed constitutional muster. Instead, Nebraska candidly conceded that the “consent to search” requirement violated the Fourth Amendment. (E.g., Filing 57 at CM/ECF p. 22 (“We begin by acknowledging that the consent to search of all computers or electronic communication devices that is required under LB 97 and LB 285 is likely not legally valid under the requirements of the Fourth Amendment, as applied to individuals no longer on parole, probation or court supervision.”).) That concession was compelled by Judge Hamilton’s thorough and thoughtful opinion in Doe v. Prosecutor, Marion County, Indiana, 566 F. Supp. 2d 862, 883 (S.D. Ind. 2008) (holding requirement in Indiana sex and violent offender registration statute that offenders not currently on parole or probation consent to warrantless searches of personal computers or devices with Internet capability at any time, or be subject to felony prosecution, violated Fourth Amendment and stating that Indiana’s legislature had “taken an unprecedented step in stripping plaintiffs of their right to be secure in their homes, ‘papers,’ and personal effects.”).

A sewage commission’s landscaper was subject to random drug screens because the equipment he operated needed unimpaired operators. Mollo v. Passaic Valley Sewerage Comm’rs, 2009 U.S. Dist. LEXIS 121009 (D. N.J. December 30, 2009):

On the other side of the calculus, the government’s interest in suspicionless drug testing of Landscapers like Mollo is weighty, since landscaping duties at the PVSC involves the use of and close contact with machinery that can pose a danger to other employees and the public, and because Mollo sometimes performed his job duties alone and without supervision.

Although the main thrust of Mollo’s job duties was not to safeguard the public, like those of police officers, Policeman’s Benevolent Ass’n, 850 F.2d at 135, or firefighters, Wilcher, 139 F.3d at 374-75, Mollo did “discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” See Skinner, 489 U.S. at 628. Mollo drove trucks throughout the facility and operated other vehicles, like snow plows. As the Southern District of New York has stated, “[l]ike a gun, a motor vehicle on a public motorway can instantly become a deadly instrument if misused.” Burka v. New York City Transit Authority, 739 F. Supp. 814, 822 (S.D.N.Y. 1990). Although Mollo did not customarily operate vehicles on public roadways, an impaired Landscaper driving snow plows or trucks on the extensive roadways of the PVSC facility poses a substantial risk of danger to co-workers or business invitees who may be on or near the facility’s roadways.

Additionally, Landscapers are required to work in the close vicinity of a cryogenic plant, electrical substation, clarifiers, and Archimedes screw pumps. Each poses a unique risk to the unwary Landscaper, as well as to co-workers and the public. A Landscaper could be crushed by or drown in the clarifiers or Archimedes screw pumps, or electrocute himself if exposed to “buss work” outside of the electrical substation. A Landscaper who inadvertently created a spark or flame near the stored oxygen in the cryogenic plant could cause an explosion, resulting in death or injury to any person in the vicinity. Major damage to the facility would interrupt waste treatment service for PVSC’s 1.3 million customers.

Permitting theft victim to be present at execution of search warrant to identify property was not a violation of the Fourth Amendment. United States v. Gregoire, 2009 U.S. Dist. LEXIS 120803 (D. Minn. December 2, 2009) (USMJ), adopted 2009 U.S. Dist. LEXIS 120801 (D. Minn. December 29, 2009):

The case law discloses a lengthy history of police officers requesting the aid of private citizens in order to accomplish a lawful search, particularly where the citizen is the victim of a theft, who is present to identify stolen items. See, e.g., United States v. Clouston, 623 F.2d 485, 487 (6th Cir. 1980); Bills v. Aseltine, 958 F.2d 697, 706 (6th Cir. 1992)(but finding citizen help unreasonable on the facts at hand); Bellville v. Town of Northboro, 375 F.3d 25, 32-33 (1st Cir. 2004) (recognizing that the use of private citizens in a search is permissible, but only when they are “serving a legitimate investigative function”); United States v. Sparks, supra at 831-32; United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982) (“We refuse to prohibit the police from asking theft victims to identify whether a particular item was stolen from them as long as doing so does not somehow enable the police to intrude into a suspect’s privacy vicariously when they could not do so directly.”).

Indeed, in Wilson v. Layne, supra at 614, the Supreme Court held that the presence of third parties in a search violates the Fourth Amendment only when “not in aid of the execution of the warrant.” Although the Arnolds contacted the police in order to offer their assistance, and not vice-versa, there is no evidence that the Arnolds participated in the search for their own personal reasons. Cf., Bills v. Aseltine, supra at 702 (in civil action, finding Fourth Amendment violation where security officer employee of victim entered home to search for items not on the Warrant, which listed only one target item, which had been found before the security officer arrived). We find no competent authority to support the Defendant’s contention, that the Arnolds’ presence during the search, in order to identify their stolen property, impermissibly intruded upon the Defendant’s privacy beyond the Warrant’s authorization.

Anal cavity bombs? Body cavity airport searches?

I’m sitting at the Newark-Liberty International Airport, and I had a discussion with my wife about two hours ago about a cell phone search case where the prison officials went after a cell phone in an anal cavity by surgery. If one can hide a cell phone there, why not the ingredients to a bomb?

Then, I see on Skating on Stilts, referenced on Volokh Conspiracy, is the comment that the underwear bomber might have had it hidden in his rectum. Frankly, that post was not seen by me until ten minutes ago, but we’re thinking the same thing.

So, full body searches of everybody? On international flights, the flight attendants sound like officers who pulled over a suspicious vehicle: “Keep your hands where I can see ’em!”

TSA will make the public hate flying more than it already does. I fly 30 round trips a year, and I used to roll with it. Now we’ll see how things change. No change at TSA at Newark tonight, but they are supposed to keep us all guessing.

And the President says that there were systemic and human failures in letting the underwear bomber get on a flight to the U.S. Well, Duh! We keep lists but don’t use them. Amsterdam Schipol has good security, but this guy gets through. I’ve been through that airport’s security at least eight times. They know what they are doing.

New Technologies and the Fourth Amendment

On Journal of Online Technology (JOLT Digest): New Technologies and the Fourth Amendment by Eric Engle:

New technologies have made types of searches possible which could never have been envisioned when the Fourth Amendment was proposed to prohibit unreasonable search and seizure. With remote listening, infrared imaging, and, now, wireless technologies, it is possible to detect movements of people within buildings with no discernible physical impact on the surveilled person’s life. Are remote searches reasonable? Do they require a warrant? In my opinion, courts should treat these sorts of remote detection techniques (“surveillance”) as searches subject to the Fourth Amendment’s requirement of reasonableness.

In light of the underwear bomb, on Politico.com by Glenn Trush is Will Chaffetz amendment haunt House? where libertarian conservatives and some liberals voted against the use of full body scan airport imaging in a TSA appropriations bill. It died in the Senate without coming to a vote.

Back in early June, Utah Republican Rep. Jason Chaffetz inserted a little-noticed, widely popular amendment into the House’s massive Homeland Security appropriations bill barring the use of full-body image scans as “primary” screening tools at airports.

The amendment, which died in the Senate, passed on a bipartisan 310-to-118 vote, with conservative libertarians joining liberals, all decrying the scans as a major invasion of privacy. The amendment was backed by a nearly irresistible coalition of interest groups, ranging from the American Civil Liberties Union to the National Rifle Association.

It would also have given passengers the option of getting a pat-down — which might have also detected the Christmas bomb — while banning the storage and copying of the images, which show a virtual picture of a person’s naked body.

See HR 2200, § 215 (June 4, 2009):

SEC. 215. LIMITATIONS ON USE OF WHOLE-BODY IMAGING TECHNOLOGY FOR AIRCRAFT PASSENGER SCREENING.

Section 44901 of title 49, United States Code, is amended by adding at the end the following:

“(l) Limitations on Use of Whole-Body Imaging Technology for Screening Passengers–

“(1) IN GENERAL- The Assistant Secretary of Homeland Security (Transportation Security Administration) shall ensure that whole-body imaging technology is used for the screening of passengers under this section only in accordance with this subsection.

“(2) PROHIBITION ON USE FOR ROUTINE SCREENING- Whole-body imaging technology may not be used as the sole or primary method of screening a passenger under this section. Whole-body imaging technology may not be used to screen a passenger under this section unless another method of screening, such as metal detection, demonstrates cause for preventing such passenger from boarding an aircraft.

. . .”

In other TSA news, the person nominated to be director of TSA, a former FBI Agent and counterterrorism expert, has been held up in the Senate by Sen. DeMint (R.-SC). He’s on Wolf Blitzer’s show on CNN this afternoon to talk about it.

Nexus in the D.C. Cir. can be shown by the averment of the affiant based on his or her experience and training or inference. United States v. Glay, 2009 U.S. Dist. LEXIS 56236 (D. D.C. June 30, 2009):

Whether or not an affiant’s averment, by itself, is sufficient to establish that there is probable cause to believe that evidence of a crime will be found at a specific location varies from circuit to circuit. Compare United States v. Crews, 502 F.3d 1130, 1136-37 (9th Cir. 2007) (holding that a nexus may be established through an officer’s “statements that his experience has shown him that further evidence of possession of firearms is often found at a suspect’s residence”), with United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994) (holding that an officer’s training and experience “cannot substitute for the lack of evidentiary nexus”), and United States v. Rosario, 918 F. Supp. 524, 530 (D.R.I. 1996) (acknowledging affiant’s “extensive training and expertise” but holding that “[t]o permit a search warrant based solely upon the self-avowed expertise of a law-enforcement agent, without any other factual nexus to the subject property, would be an open invitation to vague warrants authorizing virtually automatic searches of any property used by a criminal suspect”).

This Court, however, is required to apply the law of this Circuit, where the nexus may be established without an independent evidentiary basis–i.e., the nexus may be established by an affiant’s statement that her training and experience provides probable cause to believe that there is a nexus between criminal activity and the place to be searched. For example, in United States v. Thomas, 989 F.2d 1252, 300 U.S. App. D.C. 380 (D.C. Cir. 1993), the challenged affidavit stated that the defendant had been observed selling drugs in Washington, D.C. on the 900 block of N Street, N.W., and the magistrate judge authorized a search of the defendant’s home on the 500 block of 51st Street, N.E. The court found the affidavit adequate, holding that “observations of illegal activity outside of the home can provide probable cause for the issuance of a search warrant … even in the absence of an allegation that any illegal activity occurred in the home itself.” Id. at 1254. And if a defendant has multiple residences, observations of illegal activity outside the home can provide probable cause to search each dwelling. United States v. Johnson, 437 F.3d 69, 71-72, 369 U.S. App. D.C. 321 (D.C. Cir. 2006).

The good faith exception applied because the officer sought advice of an assistant prosecutor in getting the search warrant after having been previously turned down for one. That itself is evidence of good faith. United States v. Lane, 648 F. Supp. 2d 1122 (W.D. Mo. July 1, 2009), objection overruled by 2009 U.S. Dist. LEXIS 93598 (W.D. Mo., Oct. 7, 2009):

Here, the Government argues that Detective Kreissler both consulted with a prosecutor and that a judge–who had previously found no probable cause in an affidavit and application submitted by Detective Kreissler–issued the warrant. While such facts are strong evidence of good faith, the Government has only argued them: there has been no hearing to establish them and the Government does not submit any affidavit or other evidence from which the Court can conclude that the officers acted in good faith in executing the warrant.

Defendant’s 2255 allegation that defense counsel was ineffective for not subpoenaing records that would show that the informant was lying would not have helped him because the Franks doctrine deals only with falsities from the police officer and not the informant. Marshall v. United States, 2009 U.S. Dist. LEXIS 56184 (C.D. Ill. July 2, 2009).*

[posted 7/8/9]

State failed to prove that defendant’s patdown was justified because of lack of fear for a weapon, but it was harmless here. The officer who conducted the patdown was not even called as a witness. People v Lazcano, 66 A.D.3d 1474, 885 N.Y.S.2d 838 (4th Dept. 2009)*:

Here, the People failed to meet that burden. They established that the police were justified in stopping defendant and conducting the pat-down search …, but they failed to establish that the officer who conducted the pat-down search was justified in reaching into defendant’s pocket and seizing the knife. That officer did not testify at the suppression hearing, and the testimony of the officer who witnessed the pat-down search was insufficient to establish that the search of defendant’s pocket was legal …. We nevertheless conclude that there is no reasonable possibility that the court’s error in refusing to suppress the knife might have contributed to the conviction, and thus the error is harmless beyond a reasonable doubt ….

Marijuana smoke coming from defendant’s car window during a valid stop was probable cause under the automobile exception. State v. Cowling, 2009 Ala. Crim. App. LEXIS 120 (October 2, 2009).*

My nephew, who is a computer whiz, and was at 10 years old, found this website wouldn’t open on his iPhone. So, he goes to the coding and finds tracks from a hacker which he disabled. Now it opens on an iPhone again.

And, I posted this from my iPhone.

Statements made allegedly in violation of Miranda during a traffic stop were admissible under Berkemer. Even so, a Miranda violation does not always lead to suppression of physical evidence. United States v. Morse, 569 F.3d 882 (8th Cir. 2009):

On appeal, the government argues that the district court erred in suppressing Morse’s statements and the crack cocaine based on Miranda, and we agree. In Berkemer, the Supreme Court held that even though a motorist is seized during a traffic stop, 468 U.S. at 436-37, Miranda warnings are not required where the motorist is not subjected to the functional equivalent of a formal arrest. Id. at 440-42. Therefore, that Morse reasonably believed that he was not free to terminate the encounter with Baggett does not resolve whether Miranda warnings were required in order to elicit admissible statements from Morse. See United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir. 2003) (rejecting the “broad contention that a person is in custody for Miranda purposes whenever a reasonable person would not feel free to leave”). The district court thought Berkemer was distinguishable based on the nature of Baggett’s question to Morse, but we held in United States v. Martin, 411 F.3d 998 (8th Cir. 2005), that Miranda warnings were not required when a police officer asked a motorist during a traffic stop virtually the same question asked of Morse: whether there was “anything in the vehicle that [the officer] should know about.” Id. at 1000. Like the motorist in Martin, Morse was never “‘informed that his detention would not be temporary,’ and he was asked only a ‘modest number of questions.'” Id. at 1003 (quoting Berkemer, 468 U.S. at 442). In short, Morse was [*5] not subjected to the functional equivalent of a formal arrest before Baggett made his inquiry, and Miranda warnings were therefore not required. Id.

In addition, the parties agree that the court’s rationale for suppression of the drugs is incorrect in light of United States v. Patane, 542 U.S. 630 (2004). In Patane, the Supreme Court held that a violation of the Miranda rule does not justify the suppression of non-testimonial physical evidence that is the fruit of custodial interrogation conducted without Miranda warnings. Id. at 642-44 (plurality opinion); id. at 645 (Kennedy, J., concurring in judgment). Thus, even if Baggett had been required to administer Miranda warnings before questioning Morse in order to elicit admissible statements, the physical evidence recovered from Morse’s pocket based on his unwarned statements should not be suppressed under the Miranda rule.

Defendant had no standing in a hidden compartment in a vessel which was not his sleeping compartment. United States v. Amaro-Rodriguez, 2009 U.S. Dist. LEXIS 53989 (D. P.R. June 25, 2009).*

CI’s previous history of 8 search warrants on his information showed him believable. United States v. Harris, 2009 U.S. Dist. LEXIS 53797 (E.D. Tenn. June 25, 2009).*

“No, no but can I look when you look? I just want to be right there, you can put the hand cuffs on me and everything, just let me be right there” is consent. United States v. Hill, 334 Fed. Appx. 640 (5th Cir. 2009) (unpublished).*

Defendant who lacked “standing” to challenge a search under Carter because he was in a garage of another packaging marijuana also lacked standing to challenge a sweep of the premises that led to his arrest. Besides, the sweep was legal anyway. United States v. Jimenez, 336 Fed. Appx. 798 (10th Cir. 2009) (unpublished):

Defendant’s detention occurred after the police had conducted the sweep of Gonzalez’s residence, and only an individual with a legitimate expectation of privacy in the residence could object to the sweep. After entering the garage, officers acted reasonably in detaining Defendant when they caught him red handed with large quantities of marijuana, cuttings tools, and scales in plain sight. See United States v. Turner, 553 F.3d 1337, 1344 (10th Cir. 2009) (holding a “warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed”).

We reject any contention that the officers could not rely on the readily apparent drug trafficking evidence in the garage because they were not “lawfully located in a place from which the [drug paraphernalia could] be plainly seen.” United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993). In holding as much, we agree with our sister circuit’s reasoning that a claim the officers were not legitimately on the premises can only be raised by an individual with a legitimate expectation of privacy in those same premises. See United States v. Paopao, 469 F.3d 760, 765 (9th Cir. 2006), cert. denied, 550 U.S. 938, 127 S. Ct. 2249, 167 L. Ed. 2d 1097 (2007).

From defendant’s lethargy and smell of marijuana from the car, the experienced officer had reasonable suspicion. United States v. Binion, 570 F.3d 1034 (8th Cir. 2009).*

A dog search during an unjustified stop states a civil claim. Lange v. Miller, 2009 U.S. Dist. LEXIS 58591 (D. Colo. June 25, 2009):

A dog search of a vehicle that is conducted while the vehicle is being unlawfully detained implicates the Fourth Amendment in the same manner as any other search conducted in conjunction with any other improper seizure. See Caballes, 543 U.S. at 408. Moreover, even if the initial stop was justified, it is well-established that a dog search may not be employed if the dog search extends “beyond the measure of time required for the officer to complete … the purpose for which” the vehicle was initially detained. See United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990).

The D.C. District Court holds that the arrest of protestors at second Bush Inaugural was without probable cause. Motions for summary judgment of plaintiffs granted and defendants denied for rioting, conspiracy to riot, and parading without a permit. [The District’s definition of “riot” is hardly the traditional definition.] There is no showing of individualized suspicion for the arrest of the plaintiffs. Carr v. District of Columbia, 561 F. Supp. 2d 7 (D. D.C. 2008)*, affd 587 F.3d 401 (D.C. Cir. 2009). See n.14:

Moreover, even if the District were correct in its assertion that each of the arrestees was parading without a permit, Barham makes clear that this would not be enough to sustain a mass arrest. As the Court explained, “[a]s a prerequisite to instituting a mass arrest intended to diffuse a volatile demonstration, police must have a valid legal basis for clearing the area.” Barham, 434 F.3d at 576. However, this is not sufficient, for as the Court went on to explain, even if Newsham had had a valid legal basis, “he could not deal with the crowd as a unit unless he first issued an order to disperse and then provided a reasonable period of time to comply with that order.” Id. (internal quotation marks omitted). The Barham Court’s holding is very clear–the Fourth Amendment requires notice and an opportunity to disperse before instituting a mass arrest–and it is undisputed that this did not occur here. See also Dellums, 566 F.2d at 183 (demonstraters could not be arrested unless the Chief reasonably believed that they could be validly evicted under the Capitol Grounds ordinance and had given them an order to disperse and the opportunity to comply).

Officer had RS for continuing defendant’s detention until a drug dog could arrive. The dog’s positive alert was PC. United States v. Lopez-Gutierrez, 334 Fed. Appx. 880 (10th Cir. 2009) (unpublished).*

Defendant driver of a truck rented by another with “no other driver permitted” on the rental contract had no REP in the truck to challenge its search. The stop was valid because he was speeding. United States v. Blount, 2009 U.S. App. LEXIS 12502 (7th Cir. May 27, 2009) (unpublished).*

Under the nighttime search rule of Rule 41(e)(2)(A)(ii), a search that starts before 10 p.m. can continue past 10 p.m. without special authorization. United States v. Ming Zhang, 634 F. Supp. 2d 1040 (C.D. Cal. 2009).*

The CI in this case was not anonymous, so less corroboration was required. Officers set up surveillance and watched defendant, and his actions corroborated the informant’s story. United States v. Allen, 623 F. Supp. 2d 998 (E.D. Mo. 2009).*

Louisiana’s First Circuit follows other states and concludes that an anonymous tip of DWI is enough to stop a car because of the inherent danger in DWIs. State v. Barras, 20 So. 3d 1100 (La. App. 1st Cir. 2009):

We find that the strong interest in public safety supersedes any expectation of privacy and justifies an investigatory stop of a vehicle based solely on an anonymous tip that the driver may be driving under the influence. Despite the concerns over a lack of reliability of an anonymous tip, we note that in the present scenario, a call placed from a cellular phone to the police reporting the in-time movement of the suspected driver which also included identification of the vehicle being driven by make, model, color, and license plate number, carried an enhanced reliability based on the police officer’s ability to locate the driver based on this information. Second, the conduct at issue is the temporary investigative stop of a vehicle based on reasonable suspicion, not the more intrusive probable cause search of its contents or arrest of its driver, which would be governed by different rules. Third, an intoxicated or erratic driver poses a significant risk of death or injury to himself and to the public and, as such, that factor is substantial in evaluating the reasonableness of the stop itself. See State v. Golotta, 178 N.J. 205, 217-218, 837 A.2d 359, 366 (N.J. 2003) (wherein the New Jersey Supreme Court using similar considerations reduced the degree of corroboration necessary to uphold the stop of a motorist suspected of erratic driving who had been reported by an anonymous caller).

Implied consent statute complies with Schmerber. However, “[b]ecause LaForge was not under arrest as required by section 321J.10A, we conclude the district court erred in denying her motion to suppress the blood test results obtained from the warrantless withdrawal of her blood. We therefore reverse that portion of the district court’s ruling.” State v. Laforge, 2009 Iowa App. LEXIS 594 (June 17, 2009).*

Plaintiff stated a claim that he was detained and subjected to a dog sniff when he refused to consent to a vehicle search. Conwill v. Sheriff of Lowndes County, 2008 U.S. Dist. LEXIS 75851 (N.D. Miss. September 29, 2008):

Moreover, it seems that the decision to detain Plaintiffs and to call the canine unit was based on Jeff Conwill’s refusal to consent to a search of the vehicle. Jeff Conwill testified that Deputy Bell threatened to retrieve a drug dog if Conwill did not allow him to search the vehicle. The police cannot base their decision to prolong a traffic stop on the detainee’s refusal to consent to a search. United States v. Williams, 271 F.3d 1262, 1271 (10th Cir. 2001) (holding that the officer could choose to detain plaintiff after he refused to consent to a search of his car “if the officer already had sufficient reasonable suspicion to detain [the plaintiffs] for the purpose of the canine drug search.”). In this case, as already discussed, Deputy Bell had not observed facts sufficient to raise a reasonable suspicion when he asked for consent. Therefore, Deputy Bell could not consider Jeff Conwill’s refusal to consent in making his decision to detain Plaintiffs. Because the detention of Plaintiffs beyond the time of the initial investigation was not supported by reasonable suspicion, the detention exceeded the permissible scope of the investigatory stop.

Stop for obviously fake temporary tag was justified, and officer approaching vehicle could smell marijuana, and that justified a search of the vehicle. State v. Smith, 192 N.C. App. 690, 666 S.E.2d 191 (2008), review denied 363 N.C. 380, 680 S.E.2d 206 (2009).*

Defendant was transferred from jail to a competency evaluation, and his belongings were searched, finding unauthorized discovery materials, which were seized. He had a reduced expectation of privacy as an inmate. State v. Puapuaga, 164 Wn.2d 515, 192 P.3d 360 (2008).*

Meth was in plain view when the officer stopped the defendant for a traffic offense. The Court of Appeals erred in holding that the officer could not reach in to seize the meth because it was subject to theft or tampering. State v. Bomboy, 2008 NMSC 29, 144 N.M. 151, 184 P.3d 1045 (2008).*

Informant’s statements of a marijuana grow operation were corroborated by a trash pull at defendant’s residence where marijuana stems were found. There was no expectation of privacy in the trash left out for collection. State v. McGorty, 2008 Ohio 2643, 2008 Ohio App. LEXIS 2229 (5th Dist. June 2, 2008).*

IAC claim fails on search issue because defendant’s girlfriend had the right to consent. People v. Orsini, 2008 NY Slip Op 3804, 50 A.D.3d 1541; 855 N.Y.S.2d 793 (4th Dept. 2008).*

Defendant signed a consent form in Spanish and further indicated his consent, so his consent was valid. State v. Doe, 190 N.C. App. 723, 661 S.E.2d 272 (2008).*

Police officers lacked probable cause to enter defendant’s motel room to gather evidence to seek a search warrant. State v. Triana, 2009 Tex. App. LEXIS 2557 (Tex. App. –- San Antonio April 15, 2009).*

Defendant’s vehicle was seized because he was arrested on a parole violation warrant, and it was properly inventoried as a result. State v. Five Thousand Five Hundred Dollars in United States Currency, 296 S.W.3d 696 (Tex. App. -– El Paso April 16, 2009).*